APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
MORAN, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Larry Wade Colley, was charged with the offense of murder. Following a jury trial, he was convicted and sentenced to 14 to 16 years imprisonment. On appeal, defendant contends: (1) he was not proved guilty beyond a reasonable doubt, and (2) the trial court erred by not suppressing his post-arrest statements.
The following pertinent evidence was adduced by the State at trial:
Gilbert Nehmsow testified that he and defendant spent the evening of May 27, 1976, at the Los Hombres motorcycle "club" near Gary, Indiana. Defendant carried a .38-caliber Colt revolver the entire night. Both men drank beer and talked at the club. At about midnight, they left and arrived at Nehmsow's apartment on the southeast side of Chicago at about 1 a.m. There, they drank beer until around 3 a.m., when they decided to go out and purchase more beer. Defendant and Nehmsow were unable to find an open tavern or liquor store. They also unsuccessfully attempted to awaken a friend in a nearby residence.
According to Nehmsow, during the return trip to his apartment they reached the intersection of 100th and Commercial and stopped at the stop sign. Located on the southeast corner of the intersection was a tavern named Caesar's Palace. The time was about 4:30 a.m., the bar was closed to patrons at 4 a.m., and the outside lights were off.
However, six people were inside the tavern. The owner, Radivoja Novovic, was cleaning the tavern with the help of his brother Drago and an employee named Radomir Radvonovich. Mr. Novovic's wife, Mira Novovic, was standing behind the bar closing out the cash register. Drago's girlfriend sat on a stage waiting for the men to finish cleaning. Mr. Novovic's friend, Mike Gallich, was just returning from a rear washroom.
The front door of the tavern was partially open. Inside the tavern, all the lights were turned on for cleaning, including three or four spotlights in each corner, three lights over the bar, and a large light behind the bar. The bar was located directly behind the front door. Light from inside the tavern emanated from the partially opened front door.
Nehmsow testified that as he drove past Caesar's Palace, defendant took out his revolver, held it in both hands outside the passenger window and began firing at the tavern. Defendant fired five or six shots at the front door of the tavern. When Nehmsow shouted, "What the hell are you doing?", defendant replied, "Fuck those people."
Several people inside the tavern saw wood splintered from the front door. One of the bullets fired by defendant struck Mira Novovic, causing her death. Outside, Nehmsow and defendant drove off down 100th Street. When defendant got out of the car, he warned Nehmsow not to tell anyone what occurred.
Police ballistics tests revealed that the weapon recovered from defendant was the same weapon used to shoot and kill Mira Novovic. Four bullets recovered from the premises and the bullet found in decedent's body had been fired from defendant's gun. The bullets used were hollow-point, high-velocity bullets. According to the manufacturer, they were to be used only for law enforcement.
Dr. Eupil Choi conducted an autopsy on decedent. He determined that a bullet had entered the body through the outer side of the left arm. The bullet traversed the body piercing the left upper lung and puncturing the aorta and right upper lung. The bullet stopped only one centimeter from the surface of the right armpit. That bullet had a wooden fragment imbedded in its tip.
Nehmsow explained that he and defendant were familiar with Caesar's Palace. Nehmsow stopped in there every couple of weeks. Several weeks before the shooting, he had been there with defendant when a fight occurred. Several persons had been forced to leave, but Nehmsow was not sure whether defendant had to leave the tavern.
Officer Peter Dignan testified that he and his partner, Officer John Solecki, were present when defendant made certain post-arrest statements. In an oral statement, defendant indicated that he shot through the tavern door because he had been hassled there. He used 140 gram, spiro jacket, hollow-point bullets. In a subsequent written statement, defendant substantially corroborated his oral statement with two additions. Defendant stated he fired the shots because he was drunk and because he had been jumped in the tavern.
Defendant testified in his own behalf. He bought a Colt Detective Special .38-caliber revolver on May 15, 1976. On May 27, 1976, he went with Nehmsow to the Los Hombres Motorcycle Club. They stayed there about five hours. According to defendant, he consumed close to one case (24 cans) of beer and one-half pint of whiskey and became intoxicated. Defendant substantially corroborated Nehmsow's testimony concerning their return to Chicago and search for more beer. According to defendant, Nehmsow also carried a gun. When they were stopped at 100th and Commercial, Nehmsow said, "Hey, when I take off shoot shoot a hole in the door at Caesar's Palace." Defendant looked around and didn't see anybody and said, "Okay. Go ahead." He fired a shot and started to jerk his arm back in. Nehmsow urged the defendant to "go ahead" and keep firing. Defendant then fired the five remaining shells.
Defendant denied saying, "Fuck those people" as he was firing his gun. He did not remember seeing light coming from the interior of the tavern and claimed the front door was closed. He admitted being a patron at Caesar's Palace, but denied ever being hassled there. Defendant admitted that during his post-arrest statements to the police he stated that he fired the shots because he had been hassled in the tavern. He explained that he said that because he was tired and hoped an explanation for the shooting ...